While the article does quote from a 2008 essay about the historical cultural appropriation of black artists' works by record labels, etc., the article does not point out any specific appropriation occurring here -- at least not in terms of the two creators St. Felix has chosen to write about. And it has nothing to say about how these corporations are "profiting" from this supposed appropriation.

One of those is Kayla Newman, whose offhand comment in a Vine video birthed a new slang term.

In the video everyone knows, uploaded on June 21st, 2014, Kayla admires her precisely arched eyebrows: “We in this bitch. Finna get crunk. Eyebrows on fleek. Da fuq.”

Newman's Vine video has generated 36 million loops, moving "on fleek" from her lips to the Urban Dictionary and beyond. Some of those stops have been corporate. St. Felix points to IHOP and Denny's Twitter accounts' use of the phrase in an attempt to "feign cultural relevance."

That appears to be the extent of the "appropriation." No one's monetizing the phrase, nor have these corporate entities done damage to anyone but themselves by deploying it. Newman hasn't seen any money from creating the slang term, although it's not for a lack of trying.

“I gave the world a word,” Newman said. “I can’t explain the feeling. At the moment I haven’t gotten any endorsements or received any payment. I feel that I should be compensated. But I also feel that good things happen to those who wait.”

The other artist quoted in the Fader article is a dancer named Denzel Meechie. Meechie performs improvised dance routines to various songs. This has earned him millions of views on YouTube. It has also seen his original account shut down by the rightsholders of the songs he dances to.

In mid-September, YouTube shut down Meechie’s channel, which had accrued hundreds of thousands of subscribers. “I had too many copyright strikes,” he said, referring to his use of songs without explicit legal permission from labels.

Ironically enough, some artists whose labels have issued takedowns have actively sought out Meechie because of his viral cachet.

According to Meechie, labels contact YouTube and demand his videos be taken down, often without the knowledge of their own artists, some of whom pay him directly to help boost their buzz. “And it’s crazy, you know, because the artists ask me to put the videos up.”

That's what happens when you turn over copyright enforcement to algorithms.

Once again, we're not seeing much evidence of corporate cultural appropriation of black artists' creations. But the essay St. Felix quotes from does have something relevant to say about the intellectual property power structure.

“Black artists had no input in [copyright law], and examination reveals that it is in some respects incompatible with Black cultural production in music,” writes Greene, arguing that multiple copyright standards were specifically structured to preclude black blues artists, especially women, from claiming ownership.

It's not just black artists, though. It's all artists. Intellectual property laws have been refined by corporations and their lobbyists to provide the most protection for those with the means to benefit from extended copyright terms and ridiculously generous readings of trademark claims: corporations.

But K.J. Greene's next assertion (from her cultural appropriation essay) goes right off the rails.

“The idea/expression dichotomy of copyright law prohibits copyright protection for raw ideas,” Greene wrote. “I contend that this standard provided less protection to innovative black composers, whose work was imitated so wildly it became ‘the idea.’”

Opening up the law to include protection of ideas won't stop the IHOPs of the world from borrowing slang from a teen on Vine. It will, however, be exploited thoroughly by the same labels and studios that exploited black artists in the past. It won't level the playing field. And beyond all of that, it's just a stupid thing to say.

As is some of this, when St. Felix tries to tie this all together.

In some sense, the roaring debates over white appropriation of black slang, music, and dance have worked as an avatar for circumstance of the independent black creator in the digital age. But the analog is insufficient. Intellectual property and viral content should be interrogated from a legal standpoint[...]. The copyright statute under which Meechie’s YouTube account got flagged and then taken down should be re-examined, as should the legal gray areas that leave individual creators like Newman in the cold.

We can agree that the killing of Meechie's original YouTube account should be examined more closely, but the fault lies with labels that have opted for efficiency over accuracy -- the deployment of bots that only recognize certain arrangements of ones and zeroes, eliminating any of the nuance or context that make fair use a viable defense.

As for Newman, it's entirely unclear how much income St. Felix -- or even Newman herself -- expects a viral video loop that birthed a slang term to generate. Users can't monetize Vine loops, at least not directly. Pursuing someone for copyright infringement (if they used the Vine loop in a YouTube compilation video, for example) would be of limited usefulness.

If the concern is limited to the worldwide "unauthorized" use of "on fleek," the route for monetization runs through the trademark office. Unlike copyright, trademark doesn't apply automatically. It must be applied for, accepted and -- most importantly -- put to use. These steps aren't cheap.

But why should anyone expect this contribution to the English language to generate income? It's two words from a seven-second video, and the only way it would conceivably be protected would be as a trademarked phrase, which would only prevent others from using it under specific circumstances for specific goods/services. It will not return "ownership" to Newman. Nor will it rebalance the IP playing field. There's arguably nothing protectable here, no matter how Newman, St. Felix or essayist K.J. Greene feel about it.

Yes, corporations are opportunists who will often use current slang to coat their advertising with "How do you do, fellow kids?" vibes. But they're not co-opting cultures. They're just acting the way we expect corporations to act: make various stabs at youthful relevance with (usually) awful results. St. Felix's article does a great job tracing the origin of the phrase, but never comes close to making a point about cultural appropriation or tying this supposed act to corporate profits.

The point that does come through is that something is wrong with IP laws, but the fixes suggested here would only make things worse. And even embracing the ridiculous concept of extending IP protections to unformed ideas still wouldn't turn two words into money. Being outraged that corporations frequently behave in a manner that only furthers their own interests is a nonstarter. Stretching the shameless repurposing of slang by corporate Twitter accounts and the merciless actions of infringement bots to be indicative of a new era of exploitation of black artists is reading far too much into the predictable actions of both corporations and the bots that work for them.

from the join-in dept

Multiple people have passed along this fantastic manifesto of modern creativity that was put together by five curators of an exhibition for Les Rencontres Arles Photographie called "From Here On."

One friend noted just how inspiring that graphic alone was, but reading the more detailed manifesto is worthwhile as well. It talks about just how much the internet and digital technologies have changes our lives, and changed the way art and creativity works -- in undoubtedly positive ways. Here's just a snippet of the larger piece:

The growth of the Internet and the proliferation of sites for searching out and/or sharing images online—Flickr, Photobucket, Facebook, Google Images, eBay, to name only the best-known—now mean a plethora of visual resources that was inconceivable as little as ten years ago: a phenomenon comparable to the advent of running water and gas in big cities in the nineteenth century. We all know just how thoroughly those amenities altered people’s way of life in terms of everyday comfort and hygiene—and now, right in our own homes, we have an image-tap that’s refashioning our visual habits just as radically. In the course of art history, periods when image accessibility has been boosted by technological innovation have always been rich in major visual advances: improved photomechanical printing techniques and the subsequent press boom of the 1910s-1920s, for instance, paved the way for photomontage. Similar upheavals in the art field accompanied the rise of engraving as a popular medium in the nineteenth century, the arrival of TV in the 1950s—and the coming of the Internet today.

Digital appropriationism
Across-the-board appropriation on the one hand plus hyper-accessibility of images on the other: a pairing that would prove particularly fertile and stimulating for the art field. Beginning with the first years of the new millennium—Google Images launched in 2001, Google Maps in 2004 and Flickr the same year—artists jumped at the new technologies, and since then more and more of them have been taking advantage of the wealth of opportunities offered by the Internet. Gleefully appropriating their online finds, they edit, adapt, displace, add and subtract. What artists used to look for in nature, in urban flaneries, in leafing through magazines and rummaging in flea markets, they now find on the Internet, that new wellspring of the vernacular and inexhaustible fount of ideas and wonders.

What I love most about this is how inclusive it is, and how much of it is about recognizing and embracing what an amazingly creative time this is for artists. All too often, we hear of artists who decry such things, who complain about the fact that their club doesn't feel as exclusive any more. For artists and an art exhibit to not just embrace, but joyfully celebrate the way creativity works today, while recognizing how these tools mean that anyone and everyone are creating art all the time, is really wonderful to see.

from the one-might-hope dept

Shepard Fairey, the well-known appropriation artist who created the famous Obama "Hope" poster is in a well-publicized legal dispute over the image of that poster, with both the Associated Press and the photographer who took the original photo. It's a fascinating fair use/copyright lawsuit, but it's made a lot more complex (and not in a good way) by the fact that Fairey has been his own worst enemy, in multiple ways, throughout the lawsuit. The biggest -- and most ridiculous -- was the fact that he flat out lied and destroyed evidence. It's hard to think of anything more stupid, frankly. He had an incredibly strong fair use claim just based on using the photo that everyone knew he used -- and rather than focus on that, he clouded up the whole thing by pretending it was a different photo and destroying evidence. Those moves completely muck up the case and make it that much harder to judge it on the merits.

But there's another part of Fairey's actions that has been equally troubling: he's been known to aggressively go after others for copying his work, despite the fact that the entire basis of his work is appropriation art. Fairey has used his lawyers in a manner not unlike the recent case we wrote about involving the estate of appropriation artist Roy Lichtenstein threatening a band for using an image that was copied not from Lichtenstein's painting, but from the same original source material.

However, it looks like Fairey's rather abrupt lesson in copyright law may be changing his views somewhat -- though we'll have to see if they really stick. Jay Matteo alerts us to a blog post by Fairey, responding to some questions about a poster used in the movie Iron Man 2 that is stylistically similar to Fairey's "Hope" poster, and Fairey says:

I have received several inquiries about whether or not I was involved in a piece of art seen in Iron Man 2. I'm friends with the Iron Man movie's production designer Michael Riva who, along with his wife Wendy, was a big Obama supporter. He asked if I'd mind a HOPE poster spoof in Iron Man and I said "of course not". I did not personally design the image, nor was I paid for it. All of the Obama HOPE spoofs, positive or negative, are a reminder of the power and importance of grassroots activism to affect things. Additionally, neither is it possible to copyright a style, nor would I want to restrict visual dialog by discouraging others from paying tribute to styles I have used.

That last sentence is interesting, given that he seems to have done exactly that many times over in the past -- especially when it came to his "OBEY" campaign. If he's really changed his mind, at the very least, he should admit that he was wrong in the past and now he realizes that. Otherwise, his statement rings pretty hollow.

from the have-fun-with-it,-people dept

Now this ought to be fun to watch. We've written plenty of stuff about the ongoing legal fight between artist Shephard Fairey and the Associated Press. And, every time we write about it, someone always points out that Fairey is often just as bad as the AP. Despite being an "appropriation" artist, who regularly uses the works of others in his own work (something we think is great), he's also been known to legally threaten others for doing the same with his own work. So, it looks like someone has decided to poke both with a stick, to see who gets provoked first. That someone is artist Evan Roth. ChurchHatesTucker alerts us that Roth has launched his "Intellectual Property Asshole Competition" where he is selling, via his website, hand-painted version of both the Mannie Garcia/AP photoandShepard Fairey's poster... and will see who is the first to send him a cease and desist. While we never think it's a good idea to infringe for the sake of infringement, this ought to be fun to watch.

from the it's-called-inspiration dept

Following on our story the other day about copyright questions concerning the "appropriated art" that became the iconic Obama campaign poster, the Wall Street Journal has an interesting article exploring the fine line between derivative works and transformative works in the art world. As you probably know, derivative works (e.g., making a movie out of a book) are considered copyright infringement, but transformative works are not.

Of course, how you define a transformative work is a big open question. The article doesn't discuss it here, but for some unexplained reason, courts have mostly determined that there is no such thing as transformative works in music -- so sampling is mostly seen as infringement. The article, instead, focuses on visual artwork, though, where courts have ruled in different ways, depending on the artwork -- leading many to consider this to be a "gray area."

It probably won't surprise many, but to me the whole concept seems silly. The history of creativity has always included the concept of taking the ideas of others (those who influenced you) and building on them. That's the history of storytelling. It's the history of joke telling. It's the history of writing. It's the history of music. It's the way art is created. And that's a good thing. Art never springs entirely from 100% original thought. It's an amalgamation of what else is out there -- put together in a new way. What's even more ridiculous is that, in almost every one of these cases, it's difficult to see how the "original" complaining artist is even remotely "harmed" by the follow-on artists. If anything, it's likely that the later art would only draw more attention to the original artist. It's just that we've built up this ridiculous culture of "ownership" of ideas, where people think that someone else doing something creative by building upon my work is somehow "stealing." It's a shame, and it's incredibly damaging to our cultural heritage -- which, of course, is exactly the opposite of what copyright law is supposed to be about.